D. B. S. Constructions Private Limited v. State of Jharkhand
2015-03-03
SHREE CHANDRASHEKHAR
body2015
DigiLaw.ai
JUDGMENT : I.A. No. 582 of 2015 The learned Senior counsel for the petitioner seeks permission to withdraw this application with liberty to file fresh writ petition challenging the proceeding before the Certificate Officer in Certificate Case No. 01/2008-09 and Certificate Case No. 02/2008-09. Accordingly, I.A. No. 582 of 2015 is withdrawn with liberty to the petitioner to challenge proceeding in Certificate Case No. 01/2008-09 and Certificate Case No. 02/2008-09. W.P.(C) No. 2749 of 2011 Seeking quashing of letter dated 15.02.2008, letter dated 09.06.2008 and memo dated 24.09.2010, the present writ petition has been filed. 2. The brief facts of the case are that, the petitioner-company is a ClassI contractor registered with the Road Construction Department, Government of Jharkhand, which was awarded three work contracts and accordingly, Agreement no. 01F2/2004-05 and Agreement no. 02F2/200405 both dated 09.09.2004 and Agreement No. 30F2/ 2004-2005 dated 06.03.2005 were executed. The petitioner-company started execution of the work under contract however, due to frequent interference by the unsocial elements and non-cooperation of the respondents in not providing protection, the execution of the work was substantially affected. Compelled, the petitioner lodged First Information Report being Jaridih P.S. Case No. 36/2005 dated 02.04.2005 under Sections 323, 307, 386 r/w 34 IPC. The petitioner was surprisingly issued show-cause notice dated 04.05.2005 for alleged slow progress of the work and vide letter dated 09.06.2008, agreement was terminated by the respondent no. 5. The representation of the petitioner for referring the matter to a retired Hon'ble Judge for arbitration was also not accepted by the department and vide letter dated 24.09.2010, the petitioner-company was debarred from participating in any tender in future. 3. A counter-affidavit has been filed stating that the petitioner-company did not complete the work in time and in fact, it committed fundamental breach of the terms of the contract. The allegation of non-cooperation by the department has been denied and it is stated that remaining work under the agreements have been smoothly completed by another agency, even before the stipulated time. 4. Heard the learned counsel for the parties. 5. Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioner submits that in view of the fact that work under agreements has since been completed he would confine the prayer in the writ petition in so far as, order dated 24.09.2010 debarring the petitioner-company from participating in future tenders, is concerned. 6.
5. Mr. Anil Kumar Sinha, the learned Senior counsel for the petitioner submits that in view of the fact that work under agreements has since been completed he would confine the prayer in the writ petition in so far as, order dated 24.09.2010 debarring the petitioner-company from participating in future tenders, is concerned. 6. As against the above, Mr. Rajesh Kumar, the learned counsel for the respondent-State of Jharkhand submits that, the petitioner failed to execute the work in question and therefore, the agreements were terminated. Several notices were issued to the petitioner-company and it was granted sufficient opportunity to complete the work however, it failed to execute the work in question and therefore, a decision has been taken to debar the petitioner-company from participating in future contract. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. The facts in so far as, the termination of the agreements and debarring the petitioner-company from participating in future contract are concerned, are not in dispute. After the agreements were terminated vide letter dated 09.06.2008, a decision was communicated to the petitioner-company vide letter dated 24.09.2010 debarring it from participating in the future contract. The perusal of letter dated 24.09.2010 would indicate that no show-cause notice was issued to the petitioner-company, before a decision debarring the petitioner-company from participating in future contract is concerned. 9. It is well settled that an order of debarment from participating in future contract would entail civil as well as evil consequences to the petitioner-company. In so far as, termination of agreements is concerned, the learned Senior counsel for the petitioner has not pressed the said prayer in the writ petition however, it has been contended on behalf of the petitioner that before issuing letter dated 24.09.2010, no show-cause notice was issued to the petitioner. In the counter-affidavit filed by the respondent-State of Jharkhand, I do not find any reference as to a show-cause notice to the petitioner before a decision was taken to debar the petitioner-company from participating in the future contract. 10. In “Gorkha Security Services v. Govt. (NCT of Delhi)”, reported in (2014) 9 SCC 105, the Hon'ble Supreme Court has held thus ; 22.
10. In “Gorkha Security Services v. Govt. (NCT of Delhi)”, reported in (2014) 9 SCC 105, the Hon'ble Supreme Court has held thus ; 22. “The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order to fulfil the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz: (i) The material/grounds to be stated which according to the department necessitates an action; (ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit. We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement. 27. We are, therefore, of the opinion that it was incumbent on the part of the Department to state in the show-cause notice that the competent authority intended to impose such a penalty of blacklisting, so as to provide adequate and meaningful opportunity to the appellant to show cause against the same. However, we may also add that even if it is not mentioned specifically but from the reading of the show-cause notice, it can be clearly inferred that such an action was proposed, that would fulfil this requirement. In the present case, however, reading of the show-cause notice does not suggest that noticee could find out that such an action could also be taken. We say so for the reasons that are recorded hereinafter”. 11. As noticed above, before issuing the impugned letter dated 24.09.2010, a show-cause notice was not issued to the petitioner. Considering the above, I am of the opinion that order contained in memo dated 24.09.2010 cancelling the registration of the petitioner-company and debarring it from participating in future contracts is liable to be quashed. 12. The writ petition is allowed in the above terms. 13.
Considering the above, I am of the opinion that order contained in memo dated 24.09.2010 cancelling the registration of the petitioner-company and debarring it from participating in future contracts is liable to be quashed. 12. The writ petition is allowed in the above terms. 13. I.A. No. 3100 of 2012 and I.A. No. 536 of 2015 also stands disposed of.